Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

The proceedings which I am considering today are concerned with claims under Annex VII to the Staff Regulations, arising when officials of the Communities fulfil the duty under Article 20 of the Staff Regulations on taking up their appointment or on transfer, i.e. take up residence at the place where they are employed.

I will briefly mention the following facts. Mr and Mrs Louwage, the applicants in the proceedings, have had their matrimonial home in Luxembourg since 1956. Mr Louwage was at first employed outside the Communities. From 20 July 1964 he was employed as auxiliary with the Commission in Brussels. He was appointed a probationer there with effect from 1 October 1968 and an established official (Salary grade C 4) with effect from 1 April 1969. Mrs Louwage was originally an auxiliary at the Council of Ministers in 1958. She was appointed an established official with the European Parliament in Luxembourg with effect from 1 November 1958.

On her application and to satisfy her desire to be able to live together with her husband in Brussels, Mrs Louwage was seconded to the Commission in Brussels, at first for six months as from 5 April 1971 and then for a further six months from 6 October 1971. She was finally transferred to the Commission with effect from 5 April 1972.

In spite of the appointment of Mr Louwage as an official in Brussels and in spite of the authorization to move given to him on 14 May 1969 the residence of the couple remained at the beginning in Luxembourg. At that time Mr Louwage had apparently only a small furnished flat in Brussels and later a larger furnished flat, which Mrs Louwage shared from the time of her secondment to Brussels. From 1 October 1968 to 27 September 1969, therefore, Mr Louwage received daily subsistence allowance in accordance with Article 10 of Annex VII to the Staff Regulations.

The removal of the family possessions and the surrender of the flat in Luxembourg did not come about until 27 January 1972 after Mrs Louwage had applied on 11 November 1971 for authorization to move. The removal expenses amount to 24600 BF. They were paid by the applicants on 22 August 1972.

Mrs Louwage received a note dated 25 October 1972 from the Head of the Individual Rights and Privileges Division of the Directorate of Social Affairs of the Commission. The note stated that before the removal expenses could be reimbursed it would be necessary to look into the reason why the removal firm had initially submitted a bill which was far in excess of the actual costs. As regards the installation allowance it was explained that on Mrs Louwage's application she would receive one month's basic salary and that Mr Louwage would also receive a corresponding allowance according to his basic salary at the time of his establishment as an official, from which however a deduction would be made in accordance with Article 10 (2) of the former Annex VII to the Staff Regulations. Mrs Louwage was not entitled to payment of daily subsistence allowance, since on being seconded to Brussels she had lived together with her husband. Finally, it was observed in the note that from 1 April to 27 September 1969 Mr Louwage had wrongly received daily subsistence allowance and that corresponding amounts would be deducted from his salary.

The applicants did not agree with this note and on 13 November 1972 submitted a joint complaint to the Director-General of Administration. They claimed inter alia that Mr Louwage had rightfully received daily subsistence allowance until 27 September 1969, because he was not able to move to Brussels. Further, the allowance of the full 24600 BF paid as removal expenses on 22 August was claimed, i.e. reimbursement without regard to the daily subsistence allowance received by Mr Louwage. Finally it was contended that Mrs Louwage was entitled to daily subsistence allowance for the duration of her secondment to Brussels up to the removal of the family possessions, because during this time the common family household had not been in Brussels, for the family returned to Luxembourg every weekend, where a tenancy was maintained until 31 January 1972.

Since the applicants received no reply to this complaint within the period of 4 months laid down in Article 90 of the new Staff Regulations, i.e. before 30 March 1973, they filed an appeal on 29 June 1973 with the Court.

The following claims are made in the appeal:

After the proceedings were started, two notices dated 31 July 1972 signed by a member of the Commission were sent to the applicants.

In one note Mr Louwage was informed that he ought to have received only 14650 BF as notional removal expenses in the period from 1 April to 30 September 1969. However, no repayment of the excess paid as daily subsistence allowance would be required because the conditions of Article 85 of the Staff Regulations were not fulfilled. Under Article 5 (4) of Annex VII to the Staff Regulations he could receive only half the installation allowance to which he would otherwise be entitled and moreover the deductions had to be made which were provided for by Article 10 of the former Annex VII to the Staff Regulations and Article 5 of the internal directive of the Commission of 17 March 1971 relating to removal expenses and daily subsistence allowance.

Mrs Louwage received a notice to the effect that as far as removal expenses were concerned the fact that her husband had received notional removal expenses in the form of daily subsistence allowance after 1 April 1969 would have to be taken into consideration with the result that there remained only 9950 BF to be allowed. As regards the installation allowance it was once more explained to her that she would receive one month's basic salary. Finally, she was not entitled to daily subsistence allowance, since she had joined her husband in Brussels on 5 April 1971 and had thereby re-established the matrimonial home.

The applicants thereupon in the reply dropped a part of their original claim. Only the application for an order that the Commission should pay removal expenses amounting to 24600 BF and daily subsistence allowance to Mrs Louwage for the period from 5 April 1971 to 27 January 1972 was pursued. The applicants also maintained their claim that the Commission should be ordered to pay the whole costs of the proceedings in any event.

As regards these remaining claims, which in the Commission's view are unfounded, it must be said:

1 Translated from the German.